B.C.'s highest court has ruled that people have a constitutional right to marijuana products such as infused oils, balms and lotions and tasty pot cookies like this $10 double dose cookie, bought from a Vancouver medical marijuana dispensary.

Photograph by: Vancouver Sun

B.C.’s highest court has ruled there is a constitutional right to tasty pot cookies and other marijuana products such as infused oils, balms and lotions.

In a 2-1 judgment, the provincial Court of Appeal said the country’s medical marijuana legislation is unconstitutional because it restricts patients to possessing only the dried plant and to consuming it via smoking.

The top bench suspended its ruling to give Ottawa a year to amend the law to allow patients access to edibles and derivatives — such as creams, salves, brownies, cakes, cookies and chocolate bars.

“In my opinion, decisions concerning how one manages serious health problems go to the core of what it means to live with dignity, independence and autonomy as contemplated in (Supreme Court of Canada) cases like Morgentaler, Parker, and Adams,” wrote Judge Nicole Garson, supported by colleague Risa Levine.

“Where the state interferes with an individual’s capacity to make decisions concerning the management of those health problems by threat of criminal sanction, the state is depriving that individual of the power to make fundamental personal choices and the liberty interest is engaged.”

The majority dismissed the government’s appeal of a Victoria case in which a compassion club baker, Owen Smith, was found not guilty after being caught with 200-plus cookies, a supply of cannabis-infused cooking oils and some dried dope in his apartment.

In 2012, B.C. Supreme Court Judge Robert Johnston acquitted Smith after ruling that permitting dried cannabis alone was arbitrary and did little to further a legitimate state interest.

The justice found criminalizing a patient’s choice of smoking or eating his or her medicine was an unwarranted infringement of security of the person rights guaranteed under Section 7 of the Constitution.

“I would vary the trial judge’s order to hold that the limitation ... is of no force and effect under s. 52 of the Charter to the extent that a person who has been granted an (Authorization To Possess) is permitted to possess only dried marijuana,” Garson said.

“Of course, as the Regulations rely on the ‘physician as gatekeeper’, I see no reason why an ... applicant would not be required to have their physician indicate the need for edible or topical cannabis in order to secure an exemption.”

The court heard that marijuana’s active ingredients had a longer-lasting effect if they were ingested rather than inhaled, bringing greater benefit to those who used it to treat conditions such as chronic pain and glaucoma.

Smoking achieves a quicker, but less-lasting benefit.

“I’m very happy,” Smith said Thursday.

He no longer bakes for the compassion club, he added, but is working on a feature-length play about his experiences.

“I’m also blogging to keep people up to date about extracts and educating people about marijuana and the options available to patients,” Smith said.

His lawyer Kirk Tousaw maintained the decision was a great victory but raised some questions — it is unclear, he noted, whether only patients can transform dried pot into another product or whether licensed producers also had that right.

Regardless, he explained, the government is unlikely to respond very quickly because there are other constitutional challenges before the Federal Court and the B.C. Supreme Court involving the newest medical marijuana regulations, which came into effect April 1.

The outcome of that litigation will be fundamental to determining how the law is re-written, Tousaw said.

In his dissent, Judge Ed Chiasson said Smith had no right to challenge the legislation since he wasn’t a licensed medical patient or producer.

“It has nothing to do with him,” Justice Chiasson insisted.

He also offered the novel view that the regulations did not restrict patients’ access to derivatives.

“I see nothing in this language that suggests that a medical user is limited to smoking dried marijuana, which is the core position of Mr. Smith,” Justice Chiasson added.

The legislation passed muster in his opinion and he would have ordered a new trial.

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B.C.'s highest court has ruled that people have a constitutional right to marijuana products such as infused oils, balms and lotions and tasty pot cookies like this $10 double dose cookie, bought from a Vancouver medical marijuana dispensary.

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